WARNING: THE FOLLOWING REPORT CONTAINS GRAPHIC DESCRIPTIONS THAT MAY OFFEND SOME READERS. EXTREME READER CAUTION IS URGED.

By Tony Hanson, Diana Rocco

PHILADELPHIA (CBS) — A Philadelphia judge today dismissed the most serious charges against a local priest after a former altar boy testified he was sexually assaulted as a fourth grader 15 years ago.

The judge ordered defendant Father Andrew McCormick to face trial on the remaining misdemeanor charges, but prosecutors say they will refile the felony charges against the priest.

The alleged victim, now 24, testified that Father McCormick took him back to the rectory after mass and guided the boy upstairs to his living quarters.

The witness testified there was touching, groping, and McCormick tried to force him to perform oral sex.

“He tested that in approximately 1997, when he was a fourth grader at St. (John) Cantius and an altar boy, the defendant essentially sexually assaulted him,” says prosecutor Jack O’Neill. “Our contention is, and I think it is pretty clear, that under the case law and under the statute it is a very serious crime and obviously is a felony.”

The defense questions the victim’s credibility saying he came forward 15 years later and after the Penn State sex abuse trial, and the most recent Philadelphia priest trial involving Monsignor William Lynn and Father James Brennan.

“I think that it seems extremely opportunistic that after the Penn State case and the case that my office just handled this gentlemen pops out of the woodwork and apparently all he remembers is that it was 15 years ago and it was cold outside,” said William Brennan, McCormick’s attorney.

WARNING: GRAPHIC CONTENT BELOW

The victim testified that the priest’s sex organ was forced past his lips but not past his teeth, and Judge Karen Simmons ruled that the act did not meet the legal definition of “penetration” as required for a felony.

McCormick has pleaded not guilty to all the charges. His attorney, William J. Brennan, has also challenged the credibility of the alleged victim.

Shortly after Judge Simmons’ ruling, the Philadelphia DA’s office issued the following statement:

“The District Attorney’s Office will be re-filing felony charges against 56 year old Andrew McCormick. At today’s Preliminary Hearing Judge Karen Yvette Simmons dismissed Involuntary Deviate Sexual Intercourse (oral sex with child under age 13), Sexual Assault (oral sex without consent of person) and Statutory Sexual Assault (oral sex with child under age 16 and defendant more than 4 years older) charges. She remanded the case for trial on the misdemeanor charges of Indecent Assault, Corrupting the Morals of a Minor, and Endangering the Welfare of a Child.

“The adult victim testified today that when he was ten years old, McCormick straddled his chest and pressed his penis through the boy’s lips and up against his front teeth twice. McCormick was a priest at St. Cantius at the time. According to Pennsylvania law, Involuntary Deviate Sexual Intercourse (IDSI) is defined as penetrating a child’s mouth with one’s penis however slightly. The victim’s testimony clearly established penetration of his mouth by pushing the penis past the boy’s lips and up against his front teeth – all parts of which are described under the law as “mouth.” The case law is clear that even if the defendant’s penis only made contact with the outside of the boy’s lips without going further, that would constitute IDSI. For instance, the Superior Court has ruled that the lip is considered part of the mouth and that a child kissing a man’s penis is IDSI.

“The District Attorney’s Office will be filing an appeal to Motions court today. A Court of Common Pleas Judge sitting in Municipal court will review the notes of testimony from the preliminary hearing within the next thirty days and determine whether the charge of IDSI and related felony charges should have been properly held for court based on the victim’s clear testimony that the defendant’s penis went through his lips into his mouth. The Commonwealth is very confident that all the felony charges will be reinstated and McCormick will then be sent to trial in the Court of Common Pleas on all charges. ADA Jack O’Neill is specially assigned to this case.”